Empty law

The city of San Diego's Child Protection Act has never been enforced

During the last couple of weeks, CityBeat’s been challenging—both on our blog, Lastblogonearth.com, and in print—the veracity of an article by local investigative-journalism organization the Watchdog Institute, published in the San Diego Union-Tribune on Nov. 29. We’ve argued that the article’s premise—that 70 percent of county sex offenders are violating state law by living too close to schools and parks—is incorrect. According to the state Department of Corrections and Rehabilitation, all registered sex offenders who are subject to Jessica’s Law—the 2006 ballot initiative that enhanced California’s sex-offender laws—are in compliance.

The Watchdog Institute story brought up the city of San Diego’s Child Protection Act, something CityBeat covered shortly after it passed in 2008. (Among other things, we pointed out that the ordinance, like Jessica’s Law, focused its reason-for-being on a nonexistent U.S. Department of Justice study on sex offender recidivism.)

Despite a warning from the City Attorney’s office that a provision in the act could be “subject to immediate constitutional challenge,” the ordinance received unanimous City Council support amid lots of talk about keeping kids safe.

Eighteen months later, the Child Protection Act is an empty law. It was supposed to do two things: add to the state’s list of places where a sex offender can’t live and limit where registered sex offenders can be via a “presence” restriction. Under the presence restriction, no registered sex offender can be within 300 feet of a school, day-care facility, library, video arcade, playground, park or amusement center—basically anywhere children are. While the city’s residence restriction applies only to sex offenders who commit their crime after April 13, 2008, the presence restrictions apply to all registered sex offenders, regardless of when their crime was committed and whether it involved a child.

The city’s not enforced the residence restrictions, pending the outcome of a case currently before the state Supreme Court. Even then, the folks to whom the restrictions would apply are few and, more than likely, still in custody.

City Attorney Jan Goldsmith confirmed for CityBeat in an e-mail that his office “has not received any requests for prosecution of a violation of the residency restrictions under Jessica’s Law or Municipal Code.”

As for the presence restriction, Laura Arnold, a public defender, filed a challenge in November 2008. As a public defender, she can’t initiate such litigation, but, as a taxpayer, she can. Her lawsuit argued that the presence restrictions were in conflict with state law and, as a taxpayer, she didn’t want her tax dollars spent enforcing, or preparing to enforce, an invalid law.

“The presence restriction, as written… really does render off limits the entire city of San Diego, and it is effectively banishment,” Arnold told CityBeat.

In court papers, the City Attorney’s office didn’t put up much of a fight. In August, a Superior Court judge barred the city from enforcing the presence restrictions, pending the outcome of the Supreme Court case.

Arnold said she wishes the City Council, back in 2008, had listened to the experts. The presence restrictions make it difficult for registered sex offenders to find and hold a job, but the residence restrictions, should they ever be applied, are far more onerous.

“The fact that two of the largest [associations] of treatment providers and law enforcement combined come out publicly against residency restrictions—it’s no secret that it does nothing for public safety,” Arnold said.